H.R.3940 - Quality Assurance of Drug Testing Act of 1990101st Congress (1989-1990)
|Sponsor:||Rep. Solomon, Gerald B. H. [R-NY-24] (Introduced 02/01/1990)|
|Committees:||House - Energy and Commerce; Education and Labor; Post Office and Civil Service|
|Latest Action:||House - 02/28/1990 Referred to the Subcommittee on Labor Standards. (All Actions)|
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Text: H.R.3940 — 101st Congress (1989-1990)All Information (Except Text)
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Introduced in House
HR 3940 IH 101st CONGRESS 2d Session H. R. 3940 To amend the Public Health Service Act to establish Federal standards to ensure quality assurance of drug testing programs, and for other purposes. IN THE HOUSE OF REPRESENTATIVES February 1, 1990 Mr. SOLOMON introduced the following bill; which was referred jointly to the Committees on Energy and Commerce, Education and Labor, and Post Office and Civil Service A BILL To amend the Public Health Service Act to establish Federal standards to ensure quality assurance of drug testing programs, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the `Quality Assurance of Drug Testing Act of 1990'. SEC. 2. FINDINGS. Congress finds that-- (1) drug abuse in the workplace is a serious national problem, and (2) drug testing can be an effective deterrent to drug abuse when administered in a manner that provides for quality assurance. SEC. 3. PUBLIC HEALTH SERVICE ACT. (a) DRUG TESTING- The Public Health Service Act is amended-- (1) by redesignating title XXVI (42 U.S.C. 300cc et seq.) as title XXVII, and (2) by inserting after title XXV (42 U.S.C. 300bb-1 et seq.) the following new title: `TITLE XXVI--QUALITY ASSURANCE IN DRUG TESTING `SEC. 2601. LABORATORY CERTIFICATION STANDARDS. `(a) PROHIBITION- No individual may perform a toxicological analysis in connection with any drug testing program that is subject to this title unless such analysis is conducted in a laboratory certified under subsection (b). `(b) CERTIFICATION- Not later than 1 year after the date of enactment of this title, the Secretary shall establish a program for certifying laboratories that meet standards for performing-- `(1) drug screening tests, `(2) drug confirmatory tests, and `(3) both drug screening and confirmatory tests. `(c) CRITERIA- In establishing standards for certification under subsection (b), the Secretary shall use criteria that will maximize the predictive value of the testing scheme and that take into consideration the practices, procedures, and experience of drug testing programs which the Secretary determines are conducted in accordance with appropriate standards and procedures. `(d) PERIODIC REVIEW- At least once each year, the Secretary shall review, and where appropriate revise, the certification criteria established under subsection (b), taking into consideration the relevant scientific technical advances in the area of drug testing and revisions needed to reflect employer zero-drug tolerance practices. `SEC. 2602. ANTI-DRUG ABUSE POLICY. `(a) WRITTEN POLICY- As a condition of implementing or maintaining a drug testing program, an employer shall establish a written anti-drug abuse policy that shall contain, at a minimum, an explanation concerning the-- `(1) circumstances under which a drug test will be administered, the procedures for notifying an employee of a confirmed positive result, and a statement the policy will be administered in a consistent and nondiscriminatory manner without regard to whether the employee is employed in a management or hourly capacity, `(2) safeguards established for protecting the privacy of individuals who are subject to testing, including chain custody procedures and the limitations on disclosure of the results of drug tests, `(3) availability of any drug abuse treatment program, `(4) penalties that may be imposed for a violation of the anti-drug policy of the employer, and `(5) procedures under which an applicant or employee shall be given a reasonable opportunity to explain a confirmed positive test result. `(b) NOTICE- An employer shall make a reasonable effort to provide notice of the written anti-drug abuse policy to applicants and employees subject to testing using whatever methods the employer determines to be appropriate. `SEC. 2603. DRUG-FREE AWARENESS PROGRAM. `In order for an employer to be permitted to implement or maintain a drug testing program, such employer shall establish, as part of such drug testing program, a drug-free awareness program designed to inform its employees concerning-- `(1) the dangers of drug abuse, both inside and outside of the workplace, `(2) the policy of the employer of maintaining a drug-free workplace, `(3) information as to the existence and availability of counseling, employee assistance, rehabilitation, and other drug abuse treatment programs of which the employer is aware, and `(4) the penalties that may be imposed on applicants and employees who test positive for the use of a drug, and for the manufacture, distribution, dispensation, possession, or use of a drug in the workplace of the employer. `SEC. 2604. STANDARDS FOR DRUG TESTING. `(a) APPLICANTS- Nothing in this title shall be construed to prohibit an employer from requiring, as a condition of employment, that an applicant submit to and pass a drug test based on criteria established by the employer that is designed to achieve a drug-free workplace. Refusal by an applicant to submit to such a test may be treated in the same manner as a failure to pass a drug test. `(b) EMPLOYEES- Nothing in this title shall be construed to prohibit an employer from requiring an employee to submit to and pass a drug test-- `(1) where the employer has reasonable suspicion to believe that the employee is using or under the influence of a drug, `(2) where such test is administered as part of a scheduled medical examination, `(3) in the case of an accident or incident involving the actual or potential loss of human life, serious bodily injury, or significant property damage, `(4) during and for a reasonable period of time (not to exceed 5 years) after the completion of a drug abuse treatment program, or `(5) in the case of sensitive employee positions, work units, locations, or facilities where drug abuse has been identified as a problem, on a random basis. `(c) DEFINITION- As used in this title, the term `random' means the selection of individuals for testing based on a nondiscriminatory impartial methods so that no employee is harassed or treated differently from other employees in similar circumstances. `SEC. 2505. EMPLOYEE PROTECTIONS. `(a) PROHIBITIONS- In the case of an applicant or employee, it shall be a violation of this title-- `(1) for an employer to fail to make reasonable efforts to inform the applicant or employee as to the drug testing policy of the employee, `(2) for an employer to take any adverse action based on the unconfirmed positive results of a drug test, except as provided in subsection (c), `(3) for an employer, on the request of an applicant or employee, to fail to provide such applicant or employee with a reasonable opportunity to be informed of a confirmed positive drug test result, and `(4) for an employer, on the request of an applicant or employee, to fail to provide such applicant or employee with a reasonable opportunity to explain the results of a confirmed positive test result. `(b) ANTIRETALIATION PROHIBITION- It shall be a violation of this title for an employer to take retaliatory action against an employee because of the exercise by the employee of any right granted or protected under this title. `(c) EXCEPTION FOR SENSITIVE EMPLOYEES- Pending the receipt of the results of a confirmatory drug test, an employer may transfer or reassign an employee in a sensitive position to another area or position without any loss in compensation to such employee if the initial drug test result is positive. If a confirmatory test of such employee is negative, such employee shall be entitled to immediate reinstatement to the position from which such employee has been transferred or reassigned. `SEC. 2606. CONFIDENTIALITY. `(a) IN GENERAL- An individual, other than the applicant or employee who is the subject of a drug test, shall not disclose information obtained as a result of a drug test, except as provided in subsection (b). `(b) PERMITTED DISCLOSURES- An employer, or individual conducting a drug test on behalf of an employer, may disclose information acquired from a drug test only to-- `(1) the applicant or employee taking such drug test or any other individual specifically designated in writing by such applicant or employee taking such drug test, `(2) the employer, including the designated representative of such employer, that requested such test, `(3) any court, governmental agency, arbitrator, or mediator, in accordance with Federal or State law, and `(4) appropriate drug abuse treatment providers. `SEC. 2607. EMPLOYER PRACTICES. `(a) SAFE WORKPLACE- Nothing in this title shall be construed to prohibit an employer from taking action necessary to ensure a safe workplace. `(b) DRUG-FREE WORKPLACE- Nothing in this title shall be construed to prohibit an employer from taking action necessary, up to and including termination, in the case of applicant or employee-- `(1) whose drug test result is confirmed positive, `(2) who refuses to take a drug test authorized under this title, or `(3) who tampers with or adulterates a drug testing specimen. `(c) PARTICIPATION IN DRUG ABUSE TREATMENT PROGRAM- Nothing in this title shall be construed to prohibit an employer from requiring an employee to participate in, and satisfactorily complete, a drug treatment program as a condition of continued employment where the employee has tested confirmed positive for drugs, has refused to submit to a drug test, or has tampered with or adulterated a drug test specimen. `(d) SENSITIVE POSITION- Nothing in this title shall be construed to prohibit an employer from refusing to place an employee in, or reinstate such employee, to a sensitive position if such employee has tested confirmed positive for drug use. `SEC. 2608. DRUG ABUSE TREATMENT PROGRAMS. `As part of the drug-free awareness program established pursuant to section 2603, employers shall provide information to employees concerning the existence and availability of public and private drug counseling, employee assistance, rehabilitation, and other drug abuse treatment programs of which the employer is aware. `SEC. 2609. REGULATIONS. `Not later than 1 year after the date of enactment of this title, the Secretary shall-- `(1) establish a program for the certification of laboratories for the performance of toxicological urinalysis conducted for drug testing programs as described in this title, and `(2) issue such other rules and regulations as may be necessary or appropriate to carry out this title. `SEC. 2610. ENFORCEMENT AND RELIEF. `(a) LABORATORY CERTIFICATION STANDARDS- The certification program established pursuant to section 2601(b) shall be enforced in accordance with the procedures and sanctions contained in subsections (g), (h), (i), (j), (k), and (l) of section 353. `(b) EMPLOYEE COMPLAINTS CHARGING UNLAWFUL DISCHARGE OR DISCRIMINATION, INVESTIGATION ORDER. `(1) COMPLAINT- An employee who believes that such employee has been charged or otherwise discriminated against by an employer in violation of this title may, not later than 30 days after such action occurs, file (or have any individual file on behalf of such employee) a complaint with the Secretary of Labor (hereinafter referred to in this subsection as the `Secretary') alleging that such discharge or discrimination violates this title. On receipt of such complaint, the Secretary shall notify the individual named in the complaint of such filing. `(2) Investigation and order- `(A) INVESTIGATION- On receipt of a complaint filed under paragraph (1), the Secretary shall conduct an investigation of the violation alleged in such complaint. Not later than 30 days after the receipt of such complaint, the Secretary shall complete such investigation and shall notify in writing the employer (and any individual acting on behalf of the employer) as to the results of such investigation. `(B) ORDER- Not later than 30 days after the completion of such investigation, the Secretary shall, unless the proceeding on the complaint is terminated by the Secretary on the basis of a settlement entered into by the Secretary and the employer alleged to have committed such violation, issue an order either providing the relief prescribed in this section or denying the complaint. An order of the Secretary issued under this subparagraph shall be made on the record after notice and opportunity for public hearing. `(3) RELIEF- If, in response to a complaint filed under paragraph (1), the Secretary determines that a violation of this title has occurred, the Secretary shall order the employer who committed such violation to provide such suitable relief as the Secretary determines appropriate, including reinstatement, promotion, and the payment of lost wages and benefits. `(4) REVIEW OR ORDER- An employee or employer adversely affected or aggrieved by an order issued under paragraph (2) may obtain review of such order in the United States Court of Appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred. The petition for review shall be filed not later than 60 days after the issuance of the order of the Secretary under paragraph (2). Review by the Court of Appeals shall conform to chapter 7 of Title 5, United States Code. `(5) FAILURE TO COMPLY- If an employee or employer fails to comply with an order issued under paragraph (2), the Secretary may file a civil action in the United States court for the district in which the violation was found to occur to enforce such order. Such court, in issuing any final order under this subsection, may award the costs of litigation (including reasonable attorney and expert witness fees) to the prevailing party. `(c) AFFIRMATIVE DEFENSE- The good faith compliance of an employer with the standards and procedures established under this title shall constitute an affirmative defense against any complaint filed under subsection (b). `(d) CONSTRUCTION- Nothing in this title shall be construed to require an employer to establish a drug testing program for applicants or employees or make employment decisions based on such test results. `SEC. 2611. EFFECT ON OTHER LAWS. `(a) STATE LAW, SUPERSEDURE- This title shall preempt any State or local law, rule, regulation, order or standard that applies to the drug testing of an applicant or employee, or that relates to any matter addressed under this title. No State or local government shall adopt or enforce any law, rule, regulation, ordinance, standard or order relating to-- `(1) the certification of laboratories that perform drug testing analysis with respect to such analysis, `(2) requirements for the conduct of drug testing under the certification program established under this title, `(3) the conducting of employee or applicant drug testing programs, or `(4) any other matter relating to this title. `(b) OTHER FEDERAL LAWS- Nothing in this title shall be construed to prohibit the Secretary of Transportation or the Nuclear Regulatory Commission from issuing regulations with respect to drug and alcohol testing. `SEC. 2612. EFFECTIVE DATE. `This title shall become effective 2 years after the date of enactment of this title, except that the prohibition contained in section 2601(a) shall not take effect less than 1 year after establishment of the certification program required under section 2601(b). `SEC. 2613. DEFINITIONS. `As used in this title: `(1) APPLICANT- The term `applicant' means any individual who has submitted an application to an employer, whether written or oral, for employment with such employer. `(2) DRUG- The term `drug' means any controlled substance listed in Scheduled I through V of section 202 of the Controlled Substances Act (21 U.S.C. 812), alcohol, steroids, and any other drug or medication that can interfere with employment performance. `(3) DRUG ABUSE TREATMENT PROGRAM- The term `drug abuse treatment program' means a program, such as an employee assistance program, designed to assist an individual in dealing with problems caused by drug abuse. `(4) DRUG TEST- The term `drug test' means any test procedure used to take and analyze blood, breath, hair, urine or other body fluids or materials for the purpose of detecting the presence or absence of a drug or its metabolites. `(5) EMPLOYEE- The term `employee' means an individual employed by an employer. `(f) EMPLOYER- The term `employer' means an individual, partnership, corporation, association, or other entity (including the Federal Government), that employs one or more employees, and that is engaged in an industry affecting commerce. `(g) SENSITIVE EMPLOYEE- The term `sensitive employee' means an individual employed in a position whose duties, as defined by the employer, involve responsibilities affecting such matters as national security, health, or safety, environment, or other responsibilities requiring a high degree of trust and confidence. `SEC. 2614. PROFESSIONAL ATHLETES. `For purposes of this title, professional athletes may be treated in the same manner as employees who meet the definition of section 2614(g), except that professional athletes shall not be covered by section 2606(a).'. (b) Conforming Amendments- (1) Sections 2601 through 2614 of the Public Health Service Act (42 U.S.C. 300cc through 300cc-15) are redesignated as sections 2701 through 2714, respectively. (2)(A) Sections 465(f) and 497 of such Act (42 U.S.C. 286(f) and 289(f)) are each amended by striking out `2601' and inserting `2701'. (B) Section 305(i) of such Act (42 U.S.C. 242c(i)) is amended by striking out `2611' each place it appears and inserting `2711'.